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EXHIBIT 2.3
SHAREHOLDER VOTING AGREEMENT
This SHAREHOLDER VOTING AGREEMENT ("AGREEMENT") is entered into this
day of , 2000 by and between Xxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxxx and Xxxxxxx Bajarin (collectively, the "NOMINATORS"), Coda Music
Technology, Inc. ("CODA") and certain shareholders and option and warrant
holders (collectively, the "Shareholders") of Net4Music S.A., a French
corporation ("NET4MUSIC"), as listed on Schedule A, which schedule is attached
hereto and incorporated into this Agreement. The Nominators and the Shareholders
are sometimes collectively referred to herein as "PARTIES."
RECITALS
WHEREAS, the Shareholders and the Nominators desire to provide
for the appointment and election of certain directors to the Board of Directors
of Coda as set forth in this Agreement;
AGREEMENT
NOW, THEREFORE, the Parties hereby agree, represent and warrant as
follows:
1. Voting Agreement.
(a) Each Shareholder agrees to take all action necessary, including,
without limitation, the voting of the shares of stock of Coda beneficially held
by such Shareholder, other than shares of stock deemed to be beneficially owned
by reason of an option or warrant held by such Shareholder, the execution of
written consents, the calling of special meetings, the removal of directors, the
filling of vacancies on the Board of Directors of Coda, the waiving of notice
and the attending of meetings, so as to cause at least one-third of the members
of the Coda Board of Directors to be at all times comprised of persons
designated by the Nominators.
(b) The Nominators shall provide to Coda the names of the persons they
have jointly designated as their designees to the Coda Board of Directors within
15 days of receipt by the Nominators of a notice from Coda that a meeting of the
shareholders of Coda is to be held in which directors shall be elected. Coda
shall provide the Nominators with written notice of the intention to call a
meeting of the shareholders of Coda at which directors shall be elected at least
20 days prior to any public announcement of, or public distribution of
information relating to, such meeting. Coda agrees to submit the Nominators'
designees to its shareholders for a vote and to take all action reasonably
necessary in connection with such submission.
(c) Any designee of the Nominators who shall become a member of the
Coda Board of Directors and is not a Party to this Agreement as a Nominator
shall become a
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Party to this Agreement as a Nominator without the consent of any of the
Shareholders or Coda, and shall execute a counterpart signature page to this
Agreement.
(d) Coda and each Shareholder who is a member of the Coda Board of
Directors agrees to take any action reasonably necessary to ensure that at least
one member of Coda's Compensation Committee and one member of Coda's Audit
Committee is a Nominator.
2. Termination. This Agreement shall terminate on the earlier of (i) the second
anniversary of the date of this Agreement or (ii) the sale of all or
substantially all of the assets of Coda, or the merger or consolidation or other
transaction that would result in shareholders of Coda immediately prior to the
transaction owning less than 50% of the shares of the surviving corporation
after the transaction. The rights and obligations of this Agreement shall
terminate with respect to an individual Nominator at such time as such Nominator
is no longer a member of the Board of Directors of Coda; provided, however, that
such Nominator's successor, who is appointed by the Board of Directors at the
request of the remaining Nominators, shall become a Party to this Agreement as a
Nominator without the consent of any of the Shareholders or Coda, and shall
execute a counterpart signature page to this Agreement.
3. Transfer of Shares. The obligations of the Shareholders under this Agreement
shall terminate will respect to the Coda shares that they transfer to unrelated
third parties, in the public market or in a distribution to such Shareholder's
equity owners, if such Shareholder is an entity.
4. Successors and Assigns. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the Parties (including transferees of
any shares of common stock, except as provided in paragraph 3 above). Nothing in
this Agreement, expressed or implied, is intended to confer upon any Party other
than the Parties or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
5. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Minnesota.
6. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7. Titles and Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
8. Notices. Unless otherwise provided, all notices and other communications
required or permitted hereunder shall be in writing and shall be deemed
effectively given: (i) upon personal delivery to the Party to be notified, (ii)
when sent by facsimile or electronic mail if sent during normal business hours
of the recipient, if not, then on the next business day, (iii) ten (10) days
after deposit in the mail system of the jurisdiction of
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the sender or (iv) two (2) days after deposit with a nationally recognized
overnight courier. All such notices and other communications shall be sent to
the addresses reflected on the signature pages hereof, or at such other address
as a Party may designate by ten (10) days advance written notice to the other
Parties.
9. Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of each of the Nominators, Coda and the holders of at least a
majority of the shares of Coda common stock beneficially held by the
Shareholders at the time of the amendment or waiver. Any complete or partial
waiver by the Nominators of their rights under Section 1 as to a specific
election or removal of directors shall not apply to subsequent elections or
removals of directors.
9. Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision was so excluded and shall be enforceable in accordance with its terms.
10. Entire Agreement. This Agreement constitutes the complete and final
agreement among the Parties and no Party shall be liable or bound to any other
Party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein.
11. Delays or Omissions. No delay or omission to exercise any right, power or
remedy accruing to any Party under this Agreement, upon any breach or default of
any other Party under this Agreement, shall impair any such right, power or
remedy of such non-breaching or non-defaulting Party nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or of
or in any similar breach or default thereafter occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit consent or
approval of any kind or character on the part of any Party of any breach or
default under this Agreement, or any waiver on the part of any Party of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
Party, shall be cumulative and not alternative.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date above first written.
CODA MUSIC TECHNOLOGY, INC.
By
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Its
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NOMINATORS:
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Xxxx X. Xxxxxxx Xxxxxxx Bajarin
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Xxxxxx X. Xxxxxxx
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SHAREHOLDERS:
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Individuals:
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(Printed Name)
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(Signature)
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(Printed Name of Joint Owner or Spouse)
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(Signature of Joint Owner or Spouse)
Entities:
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(Printed Name of Entity)
By
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Its
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Address:
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SCHEDULE A
SHAREHOLDERS
Xxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Revenu
Xxxxxx Xxxxxxx
Viventures
Viventures FCPR
PLS Ventures Partners
InnovaFrance FCPI
InnovaFrance 99 FCPI
FCPI SOGE Innovation
FCPI SOGE Innovation 2
FCPI XXXX Xxxxxxxxxx 0
XXXX
Xxxxxxx FCPI Jet Innovation1
Xxxxxxx Holding
Genevest Consulting S.A.
Sequoia Investments Limited
Avenir Finance Partners
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